Macomb County board wins ruling in power struggle with Hackel

The state appeals court reversed a local judge and sided with the Macomb County Board of Commissioners in its power struggle over contracts with County Executive Mark Hackel.

The court in a ruling announced Wednesday reversed Macomb County Judge John Foster and backed the board’s ability to adopt an ordinance and policy that set rules for contract approval.

The Macomb County Charter says the commission “may … approve contracts of the county,” thereby giving it discretion to set a policy, the court says.

Board Chairwoman Kathy Vosburg called the ruling a major victory for county taxpayers who want transparency in its county government because it prevents contracts from being reached “behind closed doors.”

Advertisement

“It’s a very favorable ruling for the board of commissioners,” Vosburg said. “We had a contracting policy and purchasing ordinance that were challenged and were upheld. We can now operate under those two policies.

“I believe that such transparency is crucial in keeping our county government responsible, accountable, and responsive to the wishes of our constituents.”

The board appealed Foster’s ruling in May that backed Hackel, who sued after his veto of the ordinance and policy was overridden by the board. The appeals court listened to arguments Oct. 5.

Much of the policy requires board approval of contracts valued at more than $35,000 in a fiscal year or construction projecting totaling $100,000 or more.

Hackel and Assistant County Executive Al Lorenzo contended the ruling could have a disastrous effect on the county because it requires both he and the board to approve virtually every transaction by an employee. In the contracting policy approved by the board, at least four of the 14 descriptions of the type of contracts that require commission approval fail to mention a dollar amount, and expand the type of contracts from “procurement” to any “agreement or understanding,” they said.

“I have no problem with the $35,000,” Hackel said.

“The court was not asked to rule on the wisdom of the policy, but on its ability to make policy,” Lorenzo said.

The added layer of government will increase costs, they said.

But Vosburg said the board will only vote on contracts valued at more than $35,000, and more deliberation provides more transparency.

Hackel contended the dispute wasn’t about transparency but the board’s attempt to control the process.

He called the ruling “pretty favorable” because it “clarifies” his role in the contracting process, saying the executive retains the authority to negotiate and implement contracts.“The commission plays a relatively passive role” in the process,” while the executive’s role is “significant,” the panel says, Hackel noted.

Ralph “Skip” Maccarone, executive director of charter commission, said he was pleased with the ruling.

“The Court of Appeals has reaffirmed the Macomb County charter’s creation of separate, but co-equal branches of government,” Maccarone said.

Vosburg said she believes the ruling puts the policy and ordinance in immediate effect.But Lorenzo disagreed, saying Judge Foster must enter an order. The next county board meeting, a committee meeting, is scheduled for Nov. 13.

The decision not only disagrees with the executive’s arguments but the basis of Foster’s decision in Macomb County Circuit Court in Mount Clemens. Foster ruled the state Uniform Budgeting and Accounting Act says that once commissioners approve appropriations for various line items in a budget, Hackel controls spending and providing services.

But the appeals court notes that a different section provides an exception by a charter.“(The)Macomb County Charter … expressly grants to the Commission, and not to the Executive, the authority to approve contracts,” the panel says

The panel also said that the “overlapping responsibilities” in Macomb complies with the “separation of powers doctrine.”

Hackel also lost his bid for attorney fees, although the expense on both sides will come from taxpayer dollars.

The board has spent $115,000 on this and related issues, while the executive has spent at least $65,000, officials said.

The panel included former Macomb County Judge Deborah Servitto, as well as judges Jane E. Markey, who penned the opinion, and Kirsten Frank Kelly.

Hackel said he will discuss the decision with his independent legal counsel before deciding whether to appeal to the state Supreme Court.

About the Author

My beat is the courts of Macomb County and general assignment.
Read more of Jameson Cook's court coverage on his blog http://courthousedish.blogspot.com/ Reach the author at jamie.cook@macombdaily.com
or follow Jameson on Twitter: @jamesoncook.